Excerpt: - - no doubt the general rule is well settled in england. he made an order which is endorsed on the back of the draft decree in these terms. the order of the learned judge on the 1st of may endorsed on the draft decree, as it seems to me, practically tied the hands of the appellant. 472 in which it is laid down that 'if the costs are in the discretion of the judge the court of appeal will assume that the judge exercised his discretion unless it is satisfied that he has not exercised his discretion. as regards the various items of the plaintiff's claim with one or two exceptions he failed to satisfy the learned judge and the learned judge held that the plaintiff had not made out his case......objection was that no appeal lay since this was an appeal from an order as to costs only. the learned judge gave the plaintiff a decree for a certain sum and directed that the costs must follow the event. this is no doubt an appeal from an order as to costs only in the sense that the defendant only appeals from the judgment in so far as it directs that the plaintiff should have the general costs of the suit. it is not an appeal from a judgment or order which deals only with the question of costs. it is an appeal only as regards costs but it is not an appeal from an order as to costs only. for that reason it seems to me this case is distinguishable from the full bench decision in saravana mudaliar v. rajagopala chatty (1908) 17 m.l.j. 569. there sir v. bhashyam aiyangar in his.....

Judgment:

Charles Arnold White, Kt., C.J.

1. In this case two preliminary objections were taken by Mr. Grant on behalf of the respondent to the hearing of the Appeal. The appeal is from a Judgment of Wallis J. sitting on the Original Side. The right of Appeal is created by Clause 15 of the Letters Patent. Mr. Grant's first objection was that no appeal lay since this was an appeal from an order as to costs only. The learned Judge gave the plaintiff a decree for a certain sum and directed that the costs must follow the event. This is no doubt an appeal from an order as to costs only in the sense that the defendant only appeals from the judgment in so far as it directs that the plaintiff should have the general costs of the suit. It is not an appeal from a judgment or order which deals only with the question of costs. It is an appeal only as regards costs but it is not an appeal from an order as to costs only. For that reason it seems to me this case is distinguishable from the Full Bench decision in Saravana Mudaliar v. Rajagopala Chatty (1908) 17 M.L.J. 569. There Sir V. Bhashyam Aiyangar in his judgment says ' The order...the subject-matter of the appeal is expressly restricted to costs.' The order itself is set out in the judgment of Moore, J. and we have also looked into the records and the order was ' This court makes no order on the application except as to costs.' In the Full Bench case, assuming there was any adjudication, except as to costs, the adjudication to which the order for costs was incidental was not a ' judgment ' within the meaning of Clause 15 of the Letters Patent, whereas in the case now before us it cannot be suggested that the adjudication to which the order for costs is incidental is not a judgment within Clause 15. It seems to me the case before us is distinguishable from the Full Bench case on this ground. No doubt the general rule is well settled in England. It is laid down in the case of Metropolitan Asylum District v. Hill (1880) L.R. 5 A.C. 582 where Lord Blackburn refers to the rule that appeals shall not be brought merely for costs, or in relation to costs. Lord Watson says: 'I quite concede the propriety of the rule that the Court of last resort ought not to entertain an appeal which involves nothing except the payment of costs.' But in England the question is regulated by Section 49 of the Judicature Act, 1873. That section says in so many words 'No order made by the High Court or any Judge thereof, by the consent of parties, or as to costs only, which by law are left to the discretion of the Court, shall be subject to any appeal, except by leave of the Court or Judge making such order.' We have no corresponding statutory restriction on the right of appeal. In Section 35 of the Code of Civil Procedure no restriction is to be found. Section 35 is not one of the sections of the Code the application of which to the High Court is excluded by Section 120. If we turn to Section 96 we find an express provision that no appeals lie from decrees passed with the consent of the parties. That section is to the same effect as the provision with regard to consent in Section 49 of the Judicature Act 1873. There is no provision corresponding to the provision in the Judicature Act as regards appeals in cases of orders for costs. Section 96 is not one of the sections which are made inapplicable to the High Court. Of course the question as to whether, if at all, a Court of appeal should interfere with an order as to costs which are discretionary is an entirely different question. As regards the preliminary objection that in law no appeal lies from an order as to costs made in the circumstances in the order was made in this case, that is to say, as incidental to a ' judgment ' as regards that question I think our answer should be in the affirmative and that the preliminary objection should be overruled. The next preliminary objection was that the appeal was out of time. On the 28th March Judgment was delivered. The decree which was finally drawn up bears date 28th March. This is in accordance with the usual practice. In accordance with the usual practice the draft decree was furnished to the solicitors in both sides. The draft dealt with the direction as to costs on the footing that the plaintiff was to have the general costs of the suit. The defendant's solicitor objected and asked that the case might be posted on minutes of decree. On the 24th the case was posted but, for some reason or other which is not clear, by this time the decree, in the form of the draft to which the defendant's solicitor had objected, had been formally sealed and, to use the common expression, ' issued'. This same to the knowledge of the defendant's solicitor and he thought it wise to put in a review petition which he did on April 26th. On the 1st of May this review petition and also the draft decree which had been issued in the circumstances which I have stated came before the learned Judge. He made an order which is endorsed on the back of the draft decree in these terms. ' The decree has been issued by mistake as, when it was posted to be spoken to last week, I expressly directed it to be posted again before me. It must be recalled and no decree passed until approved by me. Repost after Vacation '. At the same time he made an order that the review petition should be reposted after the vacation. The review petition came before the learned judge on the 26th or 27th of July and the order made by the Judge was ' Agreed 'to be taken as if decree had been drawn up. I have entertained some doubts as to the correctness of the order as to costs, but I do not feel at liberty to interfere under Order 47 as I doubt if there is sufficient cause within the meaning of the section '. It has not been contended by Mr. Devadoss on behalf of the appellant that the time occupied in connection with the presentation of the review petition can be deducted from the prescribed period of limitation within which he had to present his appeal. The authorities as to this are against him.

2. I need refer only to Govinda v. Bhandari I.L.R. (1890) M. 81 Ashanulla v. The Collector of Dacca I.L.R. (1888) C. 242 and Pundlik v. Achut I.L.R. (1893) B. 84. It is, however, contended that there was sufficient cause for not preferring the appeal within the prescribed period by reason of the events which happened. The order of the learned Judge on the 1st of May endorsed on the draft decree, as it seems to me, practically tied the hands of the appellant. He was entitled to deduct from his period of limitation the time required for obtaining a copy of the decree. The learned Judge made an order that the decree should be recalled. I express no opinion as to whether the learned Judge had jurisdiction to make this order. In view of the order of the learned Judge that the decree was to be recalled it seems to me the appellant could not reasonably be required to present his appeal until some further order was made. I doubt whether in those circumstances he was entitled to present his appeal at all. The appeal was, in fact presented a day or two after the review petition was dismissed. The conclusion I have come to is that there was reasonable cause for non-presentation of the appeal within the prescribed period of limitation.

3. Now we come to the most difficult question in the case and that is, can we interfere with the order of the learned Judge as to costs, and if we can, ought we to interfere As I have said, the learned Judge gave the plaintiff a judgment for a certain sum of money. His order as to costs was ' I think under the circumstances the cost must follow the event.' The words ' must follow the event ' have been construed in different ways. They have been construed as meaning that the event means the result and if the plaintiff succeeds he is to get the costs. They have been construed especially in cases of counter-claims as distributive. I do not propose to discuss the various English authorities which have been cited. They are in connection with Order LXV, Rule 1 of the Rules of the Supreme Court. I only refer to Hoyes v. Tate (1907) 1 K.B. 656 where it was held that in an action tried with a jury where there are separate issues and the plaintiff obtains a verdict and judgment, but the defendant is successful as to one of the issues, if the Judge makes no order with regard to that issue interfering with the incidence of costs under Order LXV, Rule 1 the defendant is entitled to have the judgment drawn up so as to give him the costs of the issue on which he succeeds.

4. The question has been discussed in India. The only Indian authority to which I need refer is the judgment of Sir Lawrence Jenkins in Parshram v. Dorabji (1898) 2 Bom. L.R. 254 an appeal from the original side. There the learned Judge says ' An Appellate Court will not interfere with an exercise of discretion of a lower court unless it has proceeded on a manifestly wrong ground, such as the application of an erroneous principle or a misapprehension of the facts. So long as the discretion was in fact exercised, an Appellate Court will not interfere simply because it would itself have exercised the discretion differently.' The learned Judge cites Bew v. Bew (1899) 2 Ch. 472 in which it is laid down that 'if the costs are in the discretion of the Judge the Court of appeal will assume that the Judge exercised his discretion unless it is satisfied that he has not exercised his discretion. For the purposes of today I do not want to attempt to lay down any general proposition as to what are the circumstances in which an appellate court should interfere, if it so desires, with an order as to costs where the order purports to be made in the exercise of the discretion vested in the judge. I do not want to suggest that I am not prepared to accept the proposition as laid down by Sir Lawrence Jenkins. But here we are dealing with a case in which the facts are of an unusual character. I think one is entitled to say, having regard to the history of this case, that it is not clear how the learned Judge intended his order as to costs to be worked out when he used the words, 'the costs must follow the event,' When the draft decree came before him for settlement (it was an accident that the decree had already been 'issued') it seems clear from the terms of his order either that he thought that the draft decree did not carry out his intention as to how the order should be worked out, or at any rate that it was a matter for doubt as to how his order should be worked out. Otherwise it is impossible to understand why the learned judge should have observed that the decree had been issued by mistake and that it should be recalled and that no decree should be passed until approved by him. When the matter was before him on July 26th or 27th for the purposes of the review application, there was an agreement that the decree should be taken as if it had been drawn up. That agreement was for the purposes of that application only and for the purpose of enabling the learned Judge to deal with the application to review and I think it may be said that the agreement was without prejudice to any question as to whether the decree as drawn up and, according to the learned Judge, issued by mistake, really embodied the learned Judge's intention. It is quite true that the learned Judge on the 26th or 27th of July had not an opportunity of saying 'the decree which you have agreed should be treated as having been drawn up does not represent my intention ' and that he did not say so. It seems to me that is not conclusive when we consider that the learned Judge was then dealing with the question whether the case was one for review. He came to the conclusion that it was not a case for review because, as he puts it, he did not feel at liberty to interfere under Order 47 but he leaves on record the observation that he had doubts as to the correctness of the order as to costs. That, I take it, means that he had doubts as to the correctness of the manner in which the decree purports to work out his direction as to costs. Having regard to the special facts of this case I think it is open to us to consider the order as to costs as interpreted in the decree and that, if we come to the conclusion that the order, as interpreted, is not the order which should have been made I think we are at liberty to interfere.

5. The amount of plaintiff's claim is Rs. 22,700 odd. In paragraph 6 of the plaint the plaintiff gives credit to the defendant for a sum of Rs. 11,800 odd which he admits is due to the defendant as the price of certain timber supplied to him by the defendant. In paragraph 18 of the written statement the defendant pleads that after deducting certain items there remain due from him to the plaintiff a sum of Rs. 870-11-10. Among the items which the defendant says he is entitled to deduct is the balance of the price of timber supplied by the defendant. In his plaint the plaintiff puts this at Rs. 11,800 and odd. This amount as found by the Judge comes to Rs. 14,500 and odd. The defendant also sets up a counter claim for damages for alleged breach of contract. This the learned Judge dismissed. We have gone through the judgment of the learned Judge very carefully and we have also considered the correspondence between the parties. As regards the various items of the plaintiff's claim with one or two exceptions he failed to satisfy the learned Judge and the learned Judge held that the plaintiff had not made out his case.

6. Then there is a claim by the defendant for the price of timber sold by the defendant to the plaintiff which is dealt with by the learned Judge in the last paragraph of his judgment. On this the learned Judge gave judgment for the defendant for Rs. 14,500 and odd. It works out thus: the total amount claimed is Rs. 22,743; the amount for which the defendant admitted his liability though he did not make any payment into Court is Rs. 800 and odd and the amount for which the plaintiff finally gets a decree is Rs. 1220-10-4. The learned Judge dismissed the defendant's counter-claim with costs. The plaintiff will have the costs of the counter-claim.

7. As regards the general costs of the suit the parties will pay their own. The respondent must pay the costs of this appeal.